An application under section 115(2) of the Code of Civil Procedure, 1908

IN THE COURT OF DISTRICT JUDGE, DHAKA

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. OF __________

IN THE MATTER OF:

An application under section 115(2) of the Code of Civil Procedure, 1908

AND

IN THE MATTER OF:

Mr. X

S/O. Y

80/H, University Staff Quarter

University of Dhaka

Nilkhet, Dhaka

Defendant/

Petitioner

-Versus-

Ms. Z

D/O. Late K

House No. 4/8, Block-D

Lalmatia

P.S. Mohammadpur

Dhaka

Plaintiff/Opposite Party

AND

IN THE MATTER OF:

Order No. 19 dated 17.04.2005 passed by Mr. Md. Shahin Uddin, Additional Assistant Judge, 2nd Court, Dhaka in Family Suit No. 43 of 2005 disallowing the application under Order VII Rule 11 of the Code of Civil Procedure, 1908 filed by the defendant/petitioner.

The humble petition of the petitioner above named most respectfully

SHEWETH:

01. That this revisional petition is filed against Order No. 19 dated 17.04.2005 passed by Mr. Md. Shahin Uddin, Additional Assistant Judge Court, 2nd Court, Dhaka in Family Suit No. 43 of 2004 disallowing the application under Order VII Rule 11 of the Code of Civil Procedure, 1908 filed by the defendant/petitioner for framing of legal issue. The impugned order is adversely affecting the interests of the defendant/petitioner.

02. That the instant suit has been filed by Z against Xfor the following reliefs:

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03. That pursuant to the provisions of Mohomedan Law the father is the natural guardian and is entitled to the custody of a boy over seven years of age and the mother is entitled to the custody of her male child until he has completed the age of seven years. But in the plaint the plaintiff has prayed for the custody of the minor until his attaining majority. As such the defendant/petitioner on 07.0.4.2005 filed an application under order VII Rule 11 of the Code of Civil Procedure for rejection of plaint.

04. That it is crystal clear that under the Mohomedan Law the mother is entitled only to the custody of her minor child up to a certain age. But she is not the natural guardian; the father alone, or if he be dead his executor (under the Sinni Law) is the legal guardian.

G R O U N D S

I. For that in the facts and circumstances of the suit the learned Court below has committed a serious error of law in passing the impugned order which has resulted in an error in the decision occasioning failure of justice and as such the impugned order is liable to be set aside.

II. For that it is well-settled principle of Order VII, Rule 11 of the Code of Civil Procedure is that “a still born suit should be properly buried at its inception, so that no further time is consumed on a fruitless litigation”. A plain reading of the plaint shows that the instant suit is barred by Muslim law. As such the instant suit is liable to be buried at the inception by rejecting the plaint.

III. For that the learned Court below has committed error of law in not considering the provision of Mohomedan Law that the mother is entitled only to the custody of her minor child up to a certain age and as such the learned Court has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned order is liable to be set aside.

IV. For that while passing the impugned order, the learned Court below has not considered the principles of Mohomedan Law that the mother is entitled to the custody of her male child until he has completed the age of seven years. But in the plaint the plaintiff has prayed for the custody of the minor until his attaining majority and as such the learned Court has committed error of law resulting in an error in the decision occasioning failure of justice, hence the impugned order is liable to be set aside.

V. For that the impugned order is otherwise illegal and liable to be set aside.

Wherefore, it is humbly prayed that the Hon’ble Court may graciously be pleased to:

a) Issue Notice calling upon the plaintiff/opposite party to show cause as to why Order No. 19 dated 17.04.2005 passed by Mr. Md. Shahin Uddin, Additional Assistant Judge, 2nd Court, Dhaka in Family Suit No. 43 of 2005 disallowing the application under Order VII Rule 11 of the Code of Civil Procedure 1908 shall not be set aside and after hearing the parties and cause shown, if any, to pass an order setting aside the impugned order;

b) Pending hearing of the application, stay all further proceedings of Family Suit No. 43 of 2005 pending in the Additional Assistant Judge, 2nd Court, Dhaka;

c) Cost of the proceeding be awarded in favour of the petitioner; and

d) Pass such other or further order or orders as may be deemed fit and proper.

And for this act of kindness the petitioner as in duty bound will ever pray.

A F F I D A V I T

I, X, son of ___________________________, of ___________________________, Dhaka, aged about _____ years, by faith __________, profession _____________, nationality Bangladeshi, do hereby solemnly affirm and say as follows:

1. That I am the petitioner and acquainted with the facts and circumstances of the present case and competent and authorised to swear this Affidavit.

2. That the statements of facts made in this petition are true to the best of my knowledge based on documents which I verily believe to be true and the rests are submissions before this Hon’ble Court and in witness whereof I swear this Affidavit and signed below before the Affidavit Commissioner on this the 25th day of ________________ at ________ a.m.

DEPONENT
The deponent is known to me and identified by me.
ADVOCATE

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